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EC Reg. No: 0138855852-93
Ref. Ares(2017)3740822 - 25/07/2017
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Website: www.esta.be
&
,
Unit D3
- Biotechnology and Food Supply Chain DG GROW — Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
Avenue d’Auderghem 45
1040 Brussels
By email and post
Brussels, Thursday 20 July 2017,
Subject: Implementation of the Articles 15 and 16 of the European Tobacco Products
Directive (Track & Trace)
Attachment: ESTA Detailed Briefing on the Implementation of Track & Trace
Dear
, dear
,
The European Smoking Tobacco Association (ESTA) would like to raise with you the
development of Implementing and Delegated Acts of the 2014 Tobacco Products
Directive’s Articles 15 and 16 on tracking and tracing of tobacco products1. These Acts are
currently being drafted by your colleagues of DG SANTE.
ESTA is concerned that there may be a misunderstanding of the application of the Directive
for tobacco products manufactured in the European Union, but not being placed on the EU
market. In addition, we would like to raise with you the serious impact any other
interpretation will have on all, but especially on mid-sized and smaller tobacco companies.
DG SANTE seems to indicate that tobacco products manufactured in the EU for export to
third countries need to carry a so-called Unique Identifier (UID) as specified in Art. 15 of the
Directive2. At the same time, DG SANTE is clear that such products do not have to carry a
security feature as per Art. 16 of the Directive3.
ESTA does not agree that the Directive requires products for export to carry an UID as they
do not fall within the scope of the Directive. The Directive clearly states in Article 2 that a
unit packet of tobacco for the purpose of the Directive is a product placed on the market4.
That same Article than states that placing on the market means making the product
available to consumers located in the EU. Art. 15 states that Member States shall ensure
that all unit packets of tobacco products are marked with an UID.
1 Articles 15 & 16 of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the
approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture,
presentation and sale of tobacco and related products.
2 This interpretation was confirmed by the representatives of DG SANTE, Unit B2 on Tobacco Control during the
Stakeholder Workshop organised on the 15th May 2017.
3 Everis,
Implementation analysis regarding the technical specifications and other key elements for a future EU system
for traceability and security features in the field of tobacco products, Iterim Report III, May 2017, p. 39.
4 Article 2 (30) of Directive 2014/40/EU reads: “‘
unit packet’ means the smallest individual packaging of a tobacco or
related product that is placed on the market”. Article 2 (40) ) of Directive 2014/40/EU also reads: “‘
placing on the
market’ means to make products, irrespective of their place of manufacture, available to consumers located in the
Union […].
It is clear to ESTA that this means that there is a clear difference between unit packets to
be placed on the market and tobacco products not to be placed on the market which is the
case with products manufactured in the EU but destined for third countries. These products
are not being made available to consumer in the EU. Final clarity can be had from the last
sentence of Article 15(1) which excludes products manufactured outside of the EU but not
destined for the EU market5.
From an economic perspective, including EU manufactured products destined for export in
the requirement to carry an UID is seriously undermining European small and medium
enterprises and niche mid-sized manufacturers. Roll-your-own tobacco in Australia is
manufactured mainly in the EU and Australian legislation does not allow any markings to
be put on their packaging other than those prescribed in its own national legislation.
Including export products would therefore close the Australian market, or force European
production to move to Australia.
Roll-your-own tobacco and pipe tobacco are typical European export products. They are
produced by mid-sized and small companies who have their manufacturing sites in places
like Geigenhausen, Bavaria - Germany, in Kruishoutem, Flanders – Belgium and Svendborg
– Denmark employing local people. These companies do not have manufacturing facilities
outside of the EU and if such would be required resulting from EU law they would be forced
to relocate or give up third country markets.
ESTA therefore requests your assistance in clarifying the interpretation of Article 15 with
your colleagues in DG SANTE ensuring the legitimate interests of European mid-sized, small
and family owned companies.
For your further information, we have attached more a full briefing on the subject.
Yours sincerely,
Peter van der Mark,
Secretary-General ESTA
The European Smoking Tobacco Association (ESTA) represents companies manufacturing, distributing and
selling fine-cut tobacco, pipe tobacco, traditional European nasal snuff and chewing tobacco. ESTA members
are mainly mid-sized companies including SME’s and several generation old family owned businesses. Many
are still rooted in their original locality and have moved from manufacturing and selling only locally, to truly
European companies selling across the EU and beyond. These traditional and artisan European tobacco
products are part of European cultural heritage.
5 Article 15 (1) of Directive 2014/40/EU reads: “
In the case of tobacco products that are manufactured outside of the
Union, the obligations laid down in this Article apply only to those that are destined for, or placed on, the Union market”
2